McMillan v. Canada

McMillan v. Canada
Court (s) Database
Federal Court of Appeal Decisions
Date
2024-11-27
Neutral citation
2024 FCA 199
File numbers
A-9-24
Decision Content
Date: 20241127
Docket: A-9-24
Citation: 2024 FCA 199
CORAM:
DE MONTIGNY C.J.
MACTAVISH J.A.
LEBLANC J.A.
BETWEEN:
DUSTIN MCMILLAN
Appellant
and
HIS MAJESTY THE KING
Respondent
Heard at Vancouver, British Columbia, on September 10, 2024.
Judgment delivered at Ottawa, Ontario, on November 27, 2024.
REASONS FOR JUDGMENT BY:
MACTAVISH J.A.
CONCURRED IN BY:
DE MONTIGNY C.J.
LEBLANC J.A.
Date: 20241127
Docket: A-9-24
Citation: 2024 FCA 199
CORAM:
DE MONTIGNY C.J.
MACTAVISH J.A.
LEBLANC J.A.
BETWEEN:
DUSTIN MCMILLAN
Appellant
and
HIS MAJESTY THE KING
Respondent
REASONS FOR JUDGMENT
MACTAVISH J.A.
[1] Dustin McMillan is a former temporary employee of the Royal Canadian Mounted Police. He is also the representative plaintiff in a proposed class proceeding which seeks damages for alleged systemic bullying, intimidation and harassment within RCMP workplaces. Mr. McMillan’s claim is framed in negligence, asserting that the RCMP and its management owed a duty of care to class members, that they breached that duty by condoning abusive behaviour in the workplace, that class members have suffered damages as a result, and that these damages were caused by the RCMP’s breach of its duty to class members.
[2] Mr. McMillan brings this action on behalf of numerous categories of individuals who worked for or with the RCMP in a variety of capacities at different times in different locations across Canada. Also included in the class are other individuals who worked in RCMP workplaces, whether as volunteers, or while employed by other police forces, governments and organizations. The claim is also brought on behalf of individuals who, because of their relationship to a member of the proposed class, are entitled to assert a claim under the relevant family law legislation.
[3] In a decision reported as 2023 FC 1752, the Federal Court struck Mr. McMillan’s statement of claim as disclosing no reasonable cause of action except to the extent that it related to Temporary Civilian Employees (TCEs) working in the RCMP’s Kelowna Operational Communications Centre (Kelowna OCC) between January 1, 2003, and March 31, 2005 (the class period).
[4] The Federal Court dismissed Mr. McMillan’s motion to certify the action as a class proceeding on the basis that his statement of claim failed to disclose a reasonable cause of action except in relation to TCEs working at the Kelowna OCC during the class period (the Kelowna TCEs). The Federal Court further found that Mr. McMillan was not a suitable representative plaintiff for the class, as his personal claims were statute-barred.
[5] Mr. McMillan appeals from the Federal Court’s judgment, asserting that the Court made numerous errors in coming to its decisions with respect to both the motion to strike and the certification motion. In particular, Mr. McMillan asserts that the Federal Court erred in failing to find that he had pleaded sufficient material facts to support claims beyond those of the Kelowna TCEs. Even if the Federal Court did not err in this regard, Mr. McMillan says that the Court should have granted him leave to amend his statement of claim, and that it erred in refusing to do so. Mr. McMillan further contends that the Federal Court erred in declining to exercise its residual jurisdiction over the claims of the broader class, and in finding that he was not an adequate representative plaintiff for the class as his personal claims were statute-barred.
[6] His Majesty the King (the Crown) represents the RCMP in this proceeding. The Crown cross-appeals from the Federal Court’s decision, asserting that the Court erred in finding that a private law duty of care may be owed to TCEs who are engaged through contracts of employment. The Federal Court further erred, the Crown says, in applying the wrong evidentiary standard in deciding whether to assume jurisdiction over the claims of Mr. McMillan and other Kelowna TCEs arising during the class period.
[7] For the reasons that follow, I have concluded that the Federal Court did not err in striking Mr. McMillan’s statement of claim for failure to plead material facts (except as it relates to the claims of the Kelowna TCEs). The Federal Court also did not err in its assessment of the evidence, or in declining to exercise its residual jurisdiction over the claims of class members, other than those of the Kelowna TCEs. However, the Federal Court did err in denying Mr. McMillan leave to amend his statement of claim, and I would allow his appeal to this extent.
[8] Insofar as the Crown’s cross-appeal is concerned, I do not accept the Crown’s contention that it is plain and obvious that the claims of the Kelowna TCEs are doomed to fail because the RCMP employed these individuals pursuant to contracts of employment. Nor am I persuaded that the Federal Court applied the wrong evidentiary standard in deciding whether to assume jurisdiction over the claims of Mr. McMillan and other Kelowna TCEs. Consequently, I would dismiss the Crown’s cross-appeal.
[9] I have further concluded that the Federal Court did not err in dismissing Mr. McMillan’s certification motion. The Federal Court correctly found that Mr. McMillan’s statement of claim did not disclose a reasonable cause of action, except as it related to the claims of the Kelowna TCEs. Nor did the Federal Court err in finding that Mr. McMillan is not a suitable representative plaintiff for this action as his personal claims are statute-barred. Consequently, I would dismiss Mr. McMillan’s appeal of the Federal Court’s decision to dismiss his certification motion.
I. Background [10] Mr. McMillan started his employment as a TCE with the RCMP’s Kelowna OCC in September of 2003, working as a 911 operator and dispatcher. Mr. McMillan states in his statement of claim that it immediately became apparent to him that RCMP members and managers at the Kelowna OCC did not welcome TCEs, and that he was humiliated, yelled at and ridiculed by these individuals. Mr. McMillan also alleges that he witnessed RCMP staff making offensive comments and jokes about other employees, including demeaning comments about TCEs’ ability to carry out their jobs, their sexual orientation and their mental health.
[11] Mr. McMillan alleges that he first voiced his concerns about this conduct to RCMP management in early 2004. He says that nothing was done to address his concerns, which were minimized or dismissed by his superiors. Shortly thereafter, Mr. McMillan says that his performance assessments and feedback from his managers went from “exceptional” to “poor”. He asserts that this happened in retaliation for his having voiced concerns about the state of his workplace, and that other class members faced repercussions for speaking out about the bullying, harassment or intimidation that they experienced.
[12] Mr. McMillan transferred to the Operational Communications Centre in Kamloops (Kamloops OCC) in 2006, where he worked for a few months. He says that he had a positive experience working at the Kamloops OCC, which lasted until it amalgamated with the Kelowna OCC, and Mr. McMillan returned to work in Kelowna. According to Mr. McMillan, the environment of bullying, harassment and intimidation at the Kelowna OCC had not changed in his absence.
[13] In 2007, Mr. McMillan obtained a Civilian Member position with the RCMP, which he left after three months in order to return to school. While at school, he continued to work part-time as a TCE at the Kelowna OCC. He subsequently became a municipal employee, while still working at the Kelowna RCMP detachment. According to Mr. McMillan, his complaints regarding the bullying and harassment that he says that he suffered as a TCE at the Kelowna OCC remained unresolved, and a further complaint to RCMP management was ignored.
[14] At this point, Mr. McMillan says that he reached a “breaking point”, and that he was suffering from depression and anxiety. He says that he decided to leave the RCMP workplace in April of 2008, because he was “defeated, exhausted, and frustrated”. Mr. McMillan’s statement of claim was issued some 13 years later, on October 4, 2021.
II. Mr. McMillan’s Statement of Claim [15] Mr. McMillan’s statement of claim alleges that he and his fellow class members were subjected to acts of bullying, intimidation and harassment by RCMP members, civilian members, public service employees and RCMP management. The claim also alleges that the Crown, the RCMP and its management failed to fulfill the statutory and common law duties they owed to Mr. McMillan and members of the proposed class to ensure that they were in a safe and secure work environment.
[16] The statement of claim further alleges that the RCMP has condoned a culture of bullying, intimidation and harassment for decades, creating a toxic work environment that has been documented in numerous independent reviews and reports. RCMP leaders have themselves acknowledged that bullying and harassment are pervasive within the organization. Individuals who inflict the bullying, intimidation and harassment are often protected by those higher up in the chain of command, which has the effect of silencing victims.
[17] Mr. McMillan’s statement of claim additionally asserts that despite these known problems, the RCMP and its management have failed to take the necessary steps to provide class members with a safe and supportive work environment. Mr. McMillan states that the RCMP has also failed to provide class members with a meaningful (or any) way to obtain redress for their grievances, and that existing complaint or grievance processes have been inadequate or inapplicable to respond to his and other class members’ complaints of bullying, intimidation and harassment.
[18] Mr. McMillan’s statement of claim provides some 17 paragraphs detailing his own negative experiences working for or with the RCMP, and his unsuccessful attempts to obtain redress for his complaints. The statement of claim does not refer to any other individual’s experiences with the RCMP.
[19] The statement of claim then provides particulars of the alleged systemic negligence on the part of the RCMP and its management, and the injuries and damages allegedly suffered by class members.
III. The Proposed Class [20] Mr. McMillan’s statement of claim defines the proposed class as being comprised of:
[A]ll persons who worked within the RCMP workplaces […] being all current or former, including, but not limited to, temporary civilian employees, community constables, supernumerary special constables, auxiliary constables, cadets, pre-cadets, students, independent contractors and subcontractor employees (including Commissionaires, custodial worker, guards/matrons, individuals employed through temporary agencies, and interns – e.g. Youth Internship Program), other government employees (including municipal, regional or similar levels of government employees and seconded officers and employees, including Interchange Canada participants) who are not entitled to grieve under s. 208 of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, (“FPSLRA”); members of integrated policing units, and persons from outside agencies and police forces who were supervised or managed by the RCMP or who worked in an RCMP controlled workplace, volunteers, and non-profit organization employees; individuals working or attending courses on RCMP premises; and other individuals who worked with or for the RCMP and who have a Human Resources Management Information Services […] identification.
[21] The proposed class also includes individuals in class members’ families who are entitled to assert a claim for consequential loss of care, companionship and guidance pursuant to the relevant provincial family law legislation.
[22] Excluded from Mr. McMillan’s proposed class are individuals with claims that arose on or after April 1, 2005, who are subject to the ouster provisions of sections 208 and 236 of the FPSLRA. Also excluded are claims that arose while individuals served as Regular Members, Civilian Members, Special Constable Members or Reservists in the RCMP, whose claims were resolved in Tiller et al. v. His Majesty the King, Federal Court File T-1673-17, Merlo et al. v. Her Majesty the Queen, Federal Court File T-1685-16 or Ross et al. v. His Majesty the King, Federal Court File T-370-17. Claims that class members have in the certified class proceedings in Greenwood and Gray v. His Majesty the King, Federal Court file T-1201-18 and in Delisle c. R., QCCS 500-06-000820-163, are also excluded from the proposed class, unless the proceedings in these cases are de-certified prior to the trial of this action.
[23] Tiller was a class proceeding wherein it was alleged that the RCMP had failed to take reasonable measures to ensure that women working in RCMP-controlled workplaces or under RCMP supervision, who were not themselves RCMP members or direct employees of the RCMP could work in an environment free of gender—and sexual orientation–based harassment and discrimination.
[24] Merlo was a class proceeding involving allegations of systemic harassment and bullying, as well as gender—and sexual orientation-based discrimination, against current and former female RCMP members, civilian members and public service employees.
[25] Ross was a class proceeding wherein it was alleged that the Government of Canada engaged in a prolonged and widespread campaign to identify and expel thousands of lesbian, gay, bisexual and transgender members of the Canadian Armed Forces, current or former members of the RCMP and the federal public service from the ranks of these institutions.
[26] In each of Merlo, Tiller and Ross, class actions for workplace harassment were certified, albeit with the Crown’s consent to the issuance of a certification order in each case for the purpose of settlement.
[27] Delisle is a class proceeding brought on behalf of current and former RCMP members and civilian members of any gender identity residing in Canada who, in the course of their employment, suffered physical or psychological harassment, reprisals, discrimination and/or the abusive exercise of power by other members or employees, including on the basis of their francophone (or other) linguistic affiliation.
[28] Mr. McMillan explains that the proposed class definition in this case arises from the decision of this Court in Canada v. Greenwood, 2021 FCA 186, leave to appeal to SCC refused, 39885 (17 March 2022) (Greenwood). Greenwood is a class proceeding in which the representative plaintiffs seek, on their own behalf and on behalf of class members, damages for non-sexual bullying, intimidation and harassment, which they allege is systemic in RCMP workplaces. The claim also seeks damages resulting from the reprisals allegedly suffered by those who have raised complaints: Greenwood, above at para. 5.
[29] This Court determined in Greenwood that the scope of the class certified by the Federal Court in Greenwood v. Canada, 2020 FC 119 (Greenwood FC) was overly broad, given that it consisted of over two hundred thousand potential members. Included in the class was virtually everyone who ever worked for or with the RCMP or at RCMP premises, regardless of whether they were members or employees of the RCMP, or were employed in the public service and assigned to work with the RCMP: Greenwood, above at para. 4.
[30] This Court concluded that the evidence before the Federal Court only supported the inclusion of RCMP Members (i.e.: Regular Members, Special Constable Members and Civilian Members) and Reservists in the class: Greenwood, above at paras. 12, 175.
[31] According to Mr. McMillan, the proposed class in this case is made up of the individuals who were excluded from the class definition by this Court in Greenwood.
IV. The Evidence before the Federal Court [32] In addition to his own affidavit documenting his personal experiences working as a TCE at the RCMP’s Kelowna OCC, Mr. McMillan provided opinion evidence proffered by James Craig and Dr. Angela Workman-Stark. Whitney Santos, a paralegal who works with Mr. McMillan’s counsel, also provided affidavits.
[33] Mr. Craig is a labour lawyer whose evidence sought to cast doubt on the efficacy of labour arbitration as an adequate remedy for instances of workplace harassment experienced by unionized employees.
[34] Ms. Santos attaches various documents as exhibits to her affidavits. Appended to one of her affidavits are various reports that discuss findings with respect to the culture of bullying and harassment within the RCMP, and the inadequacies of the RCMP’s grievance processes. Ms. Santos does not comment on the veracity of these reports in her affidavit.
[35] One such report is the Final Report on the Tiller/Copland/Roach RCMP Class Action (the Tiller Report): Office of the Assessors, “Final Report on Tiller/Copland/Roach RCMP Class Action”, (2022), online: <https://www.rcmp‑grc.gc.ca/wam/media/6127/original/7fc02d5aaa9118111c3ac347b860408e.pdf >. This report was prepared in satisfaction of one of the terms of the settlement in the Tiller class proceeding. As noted, the Tiller class proceeding was brought on behalf of women working in RCMP-controlled workplaces or under RCMP supervision, who were not themselves RCMP members or direct employees of the RCMP, who had experienced gender-based harassment and discrimination within the RCMP.
[36] The Tiller Report describes a culture of bullying, harassment and intimidation directed at individuals who fell within the class definition in the Tiller case. Also discussed in the Tiller Report is the toxic work environment in RCMP workplaces, as they relate to non-policing personnel, and the impediments that class members face in reporting and seeking redress for bullying, harassment and intimidation.
[37] Dr. Workman-Stark is an Associate Professor in the Faculty of Business at Athabasca University. Based on the reports appended to the Santos affidavit and her own personal experience within the RCMP, amongst other things, Dr. Workman-Stark provided evidence with respect to the culture of workplace bullying, harassment, discrimination and other harmful workplace behaviours within RCMP workplaces. It was Dr. Workman-Stark’s opinion that RCMP harassment policies and practices do not come anywhere near to meeting the RCMP’s commitment to provide a safe and respectful work environment, free of discrimination, offensive behaviour, and harassment, and that members of Mr. McMillan’s proposed class continue to be exposed to bullying, harassment, and intimidation.
[38] The Crown filed affidavits from Ken Cornell, John Park and Megan McCarthy in support of its position.
[39] Ken Cornell is a Regular Member of the RCMP, where he holds the rank of Inspector. Inspector Cornell recently served as the Officer in Charge, Employment Relations Section at RCMP headquarters, where he worked on the review and modernization of RCMP harassment resolution policies. This review was set up to respond to criticisms of the RCMP raised in various reports. Inspector Cornell also discusses the different categories of personnel working in RCMP workplaces.
[40] John Park is a civilian employee of the RCMP where he serves as the Director General, Collective Bargaining and Labour Relations. Mr. Park provides evidence with respect to the past and current unionization status of various categories of employees within the RCMP, and the grievance rights currently available to them. He also describes the other avenues of recourse that may be available to RCMP employees (and some other categories of personnel) to resolve situations of harassment and/or discrimination in the workplace.
[41] Mr. Park also discusses the nature of the relationship between the RCMP and categories of workers not employed by the RCMP but who work within RCMP facilities, and the avenues of recourse that may be available to them through their own employer or home organization.
[42] Finally, Mr. Park explains the difficulties associated with trying to estimate the number of people who come within the proposed class definition. He asserts that the RCMP’s “best estimate” is that more than 290,000 individuals fall within the proposed class in this case. There are a further 1,473 “persons of interest” who have a relationship with the RCMP, such as external instructors or trainees and others.
[43] An affidavit was also provided by Megan McCarthy. She is the Acting Manager of the Disability Benefits Program Management Section within the Service Delivery Branch of Veterans Affairs Canada. Ms. McCarthy discusses the benefits and services that are available to current and former members of the RCMP. She also confirms that Mr. McMillan has not made a claim for Veterans Affairs disability benefits.
V. The Federal Court’s Decision [44] As noted earlier, the Federal Court struck all of Mr. McMillan’s claims as disclosing no reasonable cause of action, without leave to amend, except for claims pertaining to TCEs employed at the Kelowna OCC between January 1, 2003, and March 31, 2005.
[45] The January 1, 2003, date reflected the fact that the earliest incidents of misconduct alleged by Mr. McMillan occurred in 2003. Insofar as the March 31, 2005, end date is concerned, the Federal Court noted that sections 208 and 236 of the FPSLRA oust the claims of any “employee” (as defined by section 206 of the Act) arising on or after the Act came into force on April 1, 2005. This would include Mr. McMillan’s post-April 1, 2005 employment as a TCE with the RCMP, as well as the employment of other members of the proposed class who were “employees” under section 206 of the FPSLRA.
[46] Mr. McMillan evidently conceded before the Federal Court that the Court did not have jurisdiction over those claims: Federal Court reasons at para. 27.
[47] The Federal Court acknowledged that Mr. McMillan was not an “employee” within the meaning of section 206 of the FPSLRA during the time that he was a municipal employee working with the RCMP. The Court could thus have potentially retained residual jurisdiction over any allegations that Mr. McMillan might have made relating to this period. However, Mr. McMillan had not alleged in either his statement of claim or in his affidavit that he had been bullied, harassed or intimidated during his time as a municipal employee in late 2007 or 2008. Indeed, the only allegations of this nature made by Mr. McMillan concern earlier events that occurred while he was working as a TCE at the Kelowna OCC.
[48] Mr. McMillan had also not asserted that he experienced bullying, intimidation or harassment while working with the RCMP in Kamloops. This led the Federal Court to find that the only material facts pleaded in his statement of claim related to the bullying, intimidation and harassment that he and other TCEs allegedly experienced at the Kelowna OCC during the class period.
[49] The Federal Court then considered whether the pleadings and the evidence before it would allow it to exercise its jurisdiction over claims relating to other members of the proposed class arising prior to April 1, 2005, and to those involving persons who were not “employees” under the FPSLRA. The Court found no basis in the pleadings or in the evidence that would justify the Court exercising its residual jurisdiction over any claims other than those of Kelowna TCEs arising during the class period.
[50] In finding that the claims of Kelowna TCEs did disclose a reasonable cause of action, the Federal Court rejected the Crown’s argument that a claim in negligence could not be maintained where an employment contract governed the relationship between the parties.
[51] Because of these findings, the Federal Court struck all of Mr. McMillan’s claims as disclosing no reasonable cause of action, without leave to amend, except for those relating to Kelowna TCEs that arose during the class period, and those of their family members. The Court amended the class definition and the class period in the statement of claim to include “[a]ll persons who worked at the Kelowna operational communications centre between January 1, 2003 and March 31, 2005 as temporary civilian employees”.
[52] Insofar as Mr. McMillan’s certification motion was concerned, the Federal Court held that its finding that the claims of the Kelowna TCEs disclosed a reasonable cause of action satisfied the first requirement of the test for certification for these class members. The Court further found that there was some basis in fact to satisfy the “identifiable class”, “common questions of law or fact” and “preferable procedure” elements of the certification test established in Rule 334.16(1) of the Federal Courts Rules, S.O.R./98-106, as they related to the claims of Kelowna TCEs.
[53] The Federal Court found, however, that Mr. McMillan was not an adequate representative plaintiff for the class, because his personal claims were not anchored in the proceeding, as they were statute-barred. Consequently, the Federal Court dismissed Mr. McMillan’s certification motion.
VI. The Issues [54] This appeal raises the following issues:
Whether the Federal Court erred in striking all of Mr. McMillan’s statement of claim (other than claims relating to Kelowna TCEs during the class period), based on his failure to plead material facts;
Whether the Federal Court made a palpable and overriding error in denying leave to Mr. McMillan to amend the statement of claim to assert claims on behalf of the broader class;
Whether the Federal Court erred in declining to exercise its residual jurisdiction over the claims of the broader class; and
Whether the Federal Court erred in finding that Mr. McMillan was not an adequate representative plaintiff, as his own claims were statute-barred.
[55] The Crown’s cross-appeal raises the following issues:
Whether the Federal Court erred in law in finding that it is not plain and obvious that no private law duty of care is owed to Kelowna TCEs hired pursuant to contracts of employment; and
Whether the Federal Court erred in applying the wrong evidentiary standard in assessing whether to assume jurisdiction over the claims of the Kelowna TCEs with respect to claims arising during the class period.
VII. The Standard of Review [56] Whether a pleading discloses a reasonable cause of action is primarily a question of law. Consequently, the standard of appellate review of the Federal Court’s decision on both the motion to strike and the first certification condition is that of correctness: Brink v. Canada, 2024 FCA 43 at para. 40, leave to appeal to SCC refused, 41266 (10 October 2024); Canada (Attorney General) v. Nasogaluak, 2023 FCA 61 at para. 21, leave to appeal to SCC refused, 40734 (14 December 2023); Pioneer Corp. v. Godfrey, 2019 SCC 42 at para. 57; Canada (Attorney General) v. Jost, 2020 FCA 212 at para. 21. On this standard, this Court owes no deference to the Federal Court: Housen v. Nikolaisen, 2002 SCC 33 at para. 8.
[57] The standard of review applicable to discretionary decisions of the Federal Court is the Housen v. Nikolaisen standard. That is, correctness for questions of law and palpable and overriding error for questions of fact and questions of mixed fact and law (except where there is an extricable question of law): Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at para. 79.
VIII. Analysis [58] Before considering the issues raised by this appeal and cross-appeal, and in order to put Mr. McMillan’s proposed class proceeding into context, it should be noted that the RCMP has come under considerable scrutiny in recent years. Numerous individuals have come forward, alleging that the culture within RCMP workplaces is toxic, and that employees are exposed to sexual and non-sexual workplace harassment, discrimination, intimidation and abusive treatment at the hands of their superiors. These individuals have further alleged that RCMP management has condoned this behaviour, that employees’ attempts to report misconduct were thwarted or not taken seriously, and that employees often faced reprisals for making such reports.
[59] This has led to a significant amount of litigation against the RCMP, including numerous class proceedings brought on behalf of different groups, including the Tiller, Merlo, Ross, Delisle and Greenwood actions referred to earlier. As will be explained below, this Court’s decision in Greenwood is of particular significance for this case.
[60] Concerns with respect to the environment within RCMP workplaces have also resulted in numerous studies and independent reports, the most important of which for our purposes is the Tiller Report.
[61] With this understanding of the context in which Mr. McMillan’s claim arises, I turn next to consider the issues arising out of the Crown’s motion to strike.
A. The Crown’s Motion to Strike [62] Before considering whether the Federal Court erred in striking Mr. McMillan’s statement of claim for failing to disclose a reasonable cause of action, however, it is first necessary to have an understanding of the principles governing the pleading of a claim such as this.
(1) The Principles of Pleading [63] Rule 174 of the Federal Courts Rules provides that “[e]very pleading shall contain a concise statement of the material facts on which the party relies...”. Rule 181(1) further requires that pleadings “contain particulars of every allegation contained therein …”.
[64] As this Court observed in Mancuso v. Canada (National Health and Welfare), 2015 FCA 227, leave to appeal to SCC refused, 36889 (23 June 2016), “[i]t is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and relief sought”. This is because pleadings play an important role in providing notice, and in defining the issues to be tried: at para. 16.
[65] Not only is the proper pleading of a statement of claim necessary for a defendant to prepare a statement of defence, the material facts will also establish the parameters of relevancy of evidence at discovery and trial: Mancuso, above at para. 17. In addition, the nature of the facts pleaded allows counsel to advise their clients, prepare their case and map a trial strategy. Consequently, the Court and the opposing parties should not be left to speculate as to how the facts might be arranged to support various causes of action: Brink, above at para. 54.
[66] A statement of claim must thus plead each constituent element of every cause of action with sufficient particularity, and material facts must be pleaded to support each allegation. The bald assertion of conclusions does not constitute the pleading of material facts: Mancuso, above at para. 27; Canadian Olympic Association v. USA Hockey, Inc. (1997), 74 C.P.R. (3d) 348, 72 A.C.W.S. (3d) 346 (F.C.T.D.). Indeed, if the Court were to “[allow] parties to plead bald allegations of fact, or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues”: Mancuso, above at para. 17.
[67] What will constitute a material fact in a statement of claim in a given case is to be determined in light of the causes of action asserted and the damages sought. Plaintiffs must plead—in summary form but with sufficient detail—the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant the “who, when, where, how and what” of the actions that allegedly give rise to its liability: Mancuso, above at para. 19.
[68] An assessment of the sufficiency of the material facts pleaded in a statement of claim is contextual and fact-driven. There is no bright line between material facts and bald allegations, nor is there a bright line between the pleading of material facts and the prohibition on the pleading of evidence. They are, rather, points on a continuum. It is the responsibility of a motions judge, “looking at the pleadings as a whole, to ensure that the pleadings define the issues with sufficient precision to make the pre-trial and trial proceedings both manageable and fair”: Mancuso, above at para. 18.
[69] Plaintiffs cannot file inadequate pleadings and rely on defendants to request particulars, nor can they supplement insufficient pleadings to make them sufficient through particulars: Mancuso, above at para. 20; AstraZeneca Canada Inc. v. Novopharm Limited, 2010 FCA 112.
[70] Moreover, in assessing whether a statement of claim should be struck, the Court must look at the claim as it has been drafted, not how it might be drafted: Brink, above at para. 72; Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184, at para. 40.
[71] The normal rules of pleading apply with equal force to proposed class proceedings. Indeed, the launching of a proposed class action is a serious matter as it potentially affects the rights of many class members as well as the interests of defendants. Compliance with the requirements of the Federal Courts Rules is consequently not a trifling or optional matter; it is both mandatory and essential: Brink, above at para. 60; Merchant Law Group, above at para. 40.
[72] Also relevant to the analysis are the principles governing motions to strike claims on the basis that they do not disclose a reasonable cause of action. I will review these principles next.
(2) Principles Governing Motions to Strike [73] The Crown brought its motion to strike Mr. McMillan’s statement of claim pursuant to Rule 221(1) of the Federal Courts Rules, and its submissions focused on whether the claim disclosed a reasonable cause of action: Federal Court reasons at para. 5.
[74] A statement of claim should not be struck unless it is plain and obvious that the action cannot succeed, assuming the facts pleaded in the claim to be true: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93 at 980; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 63. In other words, the claim must have no reasonable prospect of success: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17.
[75] The onus is on the party who seeks to establish that a pleading fails to disclose a reasonable cause of action: La Rose v. Canada, 2023 FCA 241 at para. 19; Edell v. Canada, 2010 FCA 26 at para. 5. The threshold that a plaintiff must meet to establish that a claim discloses a reasonable cause of action is a low one: Brake v. Canada (Attorney General), 2019 FCA 274 at para. 70.
[76] Moreover, pleadings must be read generously, in a manner that accommodates any inadequacies in the allegations that are merely the result of deficiencies in the drafting of the document: see Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, [1985] S.C.J. No. 22 at 451.
[77] Motions judges should not delve into the merits of a plaintiff’s arguments, but should, rather, consider whether the plaintiff should be precluded from advancing the arguments at all: Salna v. Voltage Pictures, LLC, 2021 FCA 176 at para. 77, leave to appeal to SCC refused, 39895 (26 May 2022). Recognizing that the law is not static, motions judges must err on the side of permitting novel, but arguable claims to proceed to trial: R. v. Imperial Tobacco, above at paras. 19-25; Mohr v. National Hockey League, 2022 FCA 145 at para. 48, leave to appeal to SCC refused, 40426 (20 April 2023).
[78] That said, it must also be recognized that there is a cost to access to justice in allowing cases that have no substance to proceed. The diversion of scarce judicial resources to such cases diverts time away from potentially meritorious cases that require attention: Mohr, above at para. 50; Coote v. Lawyers’ Professional Indemnity Company, 2013 FCA 143 at para. 13, leave to appeal to SCC refused, 36226 (9 April 2015).
[79] Finally, while evidence is not ordinarily admissible on a motion to strike under Rule 221(1)(a) of the Federal Courts Rules, it may be considered insofar as the moving party alleges that the Court lacks or must decline jurisdiction: Greenwood, above at para. 95.
[80] With this understanding of the principles governing motions to strike, I turn now to consider whether the Federal Court erred in striking most of Mr. McMillan’s statement of claim based on a failure to plead material facts.
(3) Did the Federal Court Err in Striking Portions of the Statement of Claim based on a Failure to Plead Material Facts? [81] Mr. McMillan submits that the Federal Court erred in striking all of his statement of claim (other than claims relating to Kelowna TCEs), based on a failure to plead material facts. In particular, he says that the Federal Court erroneously focused on his individual experiences and the actions of lower-level RCMP managers and supervisors in striking the majority of his claims.
[82] According to Mr. McMillan, the Court failed to appreciate that this is a class action alleging systemic negligence throughout a national organization, where common duties are owed to all class members, who are subject to common policies and procedures (including internal redress procedures that are alleged to be inadequate), and who are managed under a hierarchical structure.
[83] Mr. McMillan further contends that these allegations are plead properly, with sufficient material facts stated in the statement of claim to support each element of a systemic negligence claim. He also observes that claims in systemic negligence are often certified in class actions, including in claims against the RCMP: citing, for example, McQuade et al. v. Canada (Attorney General), 2023 FC 1083; Nasogaluak, above.
[84] However, the Federal Court did not ignore the systemic nature of Mr. McMillan’s allegations. It also did not find that the material facts pleaded related only to his individual experience. Instead, the Court accepted that the statement of claim included material facts pertaining to the bullying, intimidation and harassment experienced by Mr. McMillan “and other TCEs” working at the Kelowna OCC: Federal Court reasons at para. 48.
[85] Nor did the Federal Court strike most of Mr. McMillan’s statement of claim because systemic negligence is not a viable cause of action. Indeed, the Court was satisfied that the statement of claim did disclose a reasonable cause of action in systemic negligence as it related to TCEs working at the Kelowna OCC during the class period.
[86] What the Federal Court did do was to strike most of Mr. McMillan’s statement of claim because it was devoid of any material facts that could support his allegations, except as they related to individuals working at the Kelowna OCC during the class period, and their family members: see the Federal Court’s reasons at paras. 47-49, 52, 69, 76.
[87] Indeed, Mr. McMillan’s claim focuses on the response of his managers and supervisors to his complaints, or the lack thereof. The statement of claim is completely devoid of any material facts relating to the rest of the proposed class that he seeks to represent. In particular, no facts are pleaded with respect to the legal relationship of these individuals to the RCMP, the nature, frequency or extent of their day-to-day interactions with RCMP members and employees, their reporting structure or the nature of their relationships with their own employer (if applicable). Nor are any facts pleaded as to the terms and conditions of those relationships (including whether or not they are unionized), the policies to which they are subject, whether they fall within federal or provincial jurisdiction, and the specific avenues of recourse available to those individuals, and how such avenues are alleged to be deficient.
[88] Mr. McMillan’s statement of claim is also deficient insofar as it relates to claims brought on behalf of TCEs working outside of the Kelowna OCC, as no material facts are pleaded with respect to the experiences of these individu